Lawsuit claims PSC districts violate the U.S. Constitution

Districts are carved into unequal sizes, which undercuts ‘one person, one vote’ principle, suit says

By: - December 7, 2021 5:16 pm

Montana Public Service Commission (via PSC Twitter account).

Splitting the state in two?

That was done recently and without a court challenge as Montana added a second seat in the U.S. House of Representatives based on the decennial census, conducted in 2020.

However, that same census indicates widening census gaps in Montana’s five Public Service Commissioners districts, and a suit filed with the U.S. Ninth Circuit Court of Appeals on behalf of three Montana residents calls for putting a halt to PSC elections until the maps can be redrawn to reflect the concept of one person, one vote.

The Public Service Commission is an independent board of five commissioners who regulate public utilities, including gas and electric companies and some transportation and communications companies. Its members are elected from the five districts, and they’re partisan races.

Three plaintiffs, former Montana Secretary of State Bob Brown and Gallatin County residents Hailey Sinoff and Donald Seifert, are challenging the boundaries of the five PSC districts, which they claim in the lawsuit are a violation of the 14th Amendment guaranteeing one person, one vote. They claim that all five districts violate the long held precedent that deviations of more than 10 percent are “presumptively impermissible.”

Using population counts from the most recent 2020 census, attorneys Constance Van Kley, Rylee Sommers-Flanagan and Joel Krautter describe the problem. Ideally, every district would have 216,845 people living in it. But the population of the five districts varies wildly. For example, in District 1, it’s 186,616 in an area that covers the northeastern and central part of the state. Meanwhile, District 3, which includes Bozeman and Butte, has 239,748 residents, a difference of nearly 55,000 votes.

By the numbers

District   2020 Population
Ideal deviation

District 1    186,616                 -30,229
District 2   216, 532                   -313
District 3   239,748                 22,903
District 4   208,963                 -7,882
District 5   232,366                 15,521

IDEAL          216,845

The boundaries of the PSC have not been changed since 2003, meaning two census periods have passed since. In 2000, a targeted ideal of 180,439 people had little variance among districts when the map was last drawn 18 years ago. For example, the largest deviation at the time was that roughly 10,000 people more lived in District 1 than in District 4. In 2010, more gaps started to appear with nearly 44,000 people more living in District 3 versus District 1. The lawsuit claims that those gaps have only continued to grow as the state’s population has shifted.

The lawsuit also recounts different attempts by the Legislature to remedy the problem, including dissolving the districts and voting on the commissioners individually across the state, rather than tying them to geographic districts. More recently, Sen. Doug Kary, R-Billings, had proposed converting the commissioners to appointed positions instead of elected. PSC Commissioner Tony O’Donnell, who is from Billings, opposed that motion, saying keeping commissioners elected ensures that they’re responsive to the people whom they represent.

None of those attempts to restructure or remedy the population disparity was successful.

In 2013, the Legislature came close to reapportioning the PSC districts, but the commission withdrew its support because it said that the “complexity of issues raised by (the legislation) require more time, research and deliberation than can be sufficiently addressed by the Montana State Legislature at this time.”

Secretary of State Christi Jacobsen, who is named in her capacity as the Montana Secretary of State, said she had not been served yet with the suit, and she doesn’t have power or control over the state election maps.

Emilee Cantrell, spokeswoman for Montana Attorney General Austin Knudsen, whose office will defend the state told the Daily Montanan, “We’re still not participating in your blog.”

“In the absence of action by this court, if the Legislature does not act quickly to redistrict the PSC, the 2022 election will be held using unconstitutional maps,” the lawsuit said.

Should the lawsuit move forward, Ninth Circuit Court of Appeals Chief Judge Sidney Thomas, who is from Montana, will also appoint two other judges to redraw the commission’s boundaries.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.